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tv   Smerconish  CNN  February 13, 2016 3:00pm-4:01pm PST

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the way through. >> he lived life to the hilt. we live near each other in northern virginia and our kids played in the same swimming pool in a small place there. and he was always so convivial. people understood he was a conservative. but people of all stripes enjoyed his company. he was great company. >> david gergen, thank you very much. stay with me. it is 6:00 on the east coast and we have breaking news. very sads breaking news to bring you at the top of the hour. the death of u.s. supreme court justice antonin scalia. according to a government source and a family friend, scalia died in his sleep during a visit to texas. a government official says scalia went to bed last night telling friends he was not feeling well. he did not get up for breakfast, found unresponsive in his room
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at the texas ranch. just moments ago supreme court chief justice john roberts issued this statement. on behalf of the court and retired justices i'm saddened to report that our colleague as passed away. he was an extraordinary individual and ad mired by his colleagues. his passing is a great loss to the court and the country he so loyally served. we extend our deepest condolences to maureen and their family. he was the first italian american to sit on the nation's court. sworn in on september 26, 1986. he was 79 years old. our joe johns has a look back at his life and his legacy. >> i antonin scalia do solemnly swear. >> justice scalia was a conservative in thought but not
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in personality. >> he has a pugnacious personality. that came out in oral court where he was the most aggressive questioner and behind the scenes where the memos that he wrote inside the court had a galvanizing effect on the debate among the justices. >> he was able to light up or ignite a room with his often brash demeanor and wicked sense of humor. grounded in a profound respect of american law and its constitutional traditions. >> feisty, belligerent. he was candid about how he feels about things. loves to call it like he sees it. completely not pc. prides himself in not being pc on the bench, in court. >> i'm an italian from queens. this is the top of the hill. >> a sharp mind combined with a sharp pen allowed scalia to make
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his point both to the pleasure and disappointment of his colleagues and the public. >> i think he's incredibly disarming and kind of charming in his own way. >> antonin gregory scalia was raised in the elmhurst neighborhood of new york city. the only child of a sicilian born college professor and schoolteacher mother. they instilled in the precocious child a love of words and debate. >> i was a greasy grind. i studied real hard. >> he was a top student at public and catholic schools in the city. here he is leading his high school band in the 5th avenue parade in 1950. his interest in law began in college, a so too an interest in maureen mccarthy with whom he later married and had nine children. president reagan named the 50-year-old federal judge to the hoi court in 1986. there he developed a reputation as a reliable conservative az
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hen own style livened the face of the court >> some of the other justices the, including the justices on the court and had been on the court for a while were kind of like, well if the new guy gets to ask all of these questions, i'm going to step up and ask some questions too. >> on abortion, the death penalty, affirmative action, homosexual rights, scalia clashed early and often with moderate left leaning bench mates. >> at one extreme he would alienate some of his colleagues. he was harder when he would use combative language. but as much as they would like to say i want to strangle him, he was still there. >> he became a master stylist, once referring to the junior varsity congress, quoted shakespeare and sesame street
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songs. off the bench caaim admiration, but controversy too. a hunting trip with vice president chaney at the same time that the court was considering a lawsuit over number two over access to privileged documents. a sicilian gesture some interpreted as obscene. he called it dismissive in nature. and in on the war or terror. >> war is war and it has never been the case that when you capture a combatant you have to give them a jury trial in your civil courts. it's a crazy idea to me. >> justice scalia, a man both respected and dismissed, feared and celebrated, combining equal amounts of personal levity.
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he is a larger than bench. he embraced the law and a life beyond the court. >> he will go down as one of the great justices in the history of the supreme court. i think that his clarity of thought, wit, writing, you know, will be very difficult to match. >> a judge who combined street smarts with a well-calculated conservative view of the law and its limits on society. >> i'm not driven. i enjoy what i'm doing. as soon as i no longer enjoy it, i am out of there. >> our joe johns reporting. let's talk about the life, the legacy of a man whether you agreed or disagreed with him i'd logically, a man who served this country on our nation's highest court for 30 years. justice antonin scalia who died at the age of 79, during his
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sleep on a visit to a ranch in texas. with me on the phone, a cnn contributor and a law professor at a texas university. your thoughts on his passing? >> justice scalia was a polarizing figure but he was also an enormously important figure. he branched out and led the court on different topics on how to interpret the constitution, the scope of the executive pow ir. he wrote for the majority in the 2008 decision that reinvigorated the right to bear arms. no one can contest that he left an e more mouse impact on american constitutional law. and that the court is going to be a different place without him. >> no question about that. this also comes at -- it's such a critical time in this election, the fact that the
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court was so sort of nearly evenly divided, if you will, steve. the fact that as our david gergen put it one this election now controls not only the future of the white house and congress and the weight of the parties in terms of their balance of power in congress, but of the supreme court, all three branches of the government are now in play. >> that's absolutely right. i think, you know, folks had already been saying before today's tragic news that this election was going to be largely about the supreme court. justice scalia would have turned 80. justice kennedy will turn 80. the next president, democrat or republican, is going to have an opportunity to make several appointments to the supreme court, according appointments across the conventional party line. this is going to transform the election. the interesting question is what happens until then. is president obama going to be able to find some kind of
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moderate nominee who the senate reps may accept or are we going to see an eight justice court for the rest of his term which is going to have an enormous impact on the high-profile cases, some already argued and some that will be argued next month and then in april. >> i'd like your take on a name that our jeffrey toobin, our supreme court expert threw out there, and that is judge sha reena vosen. this is a justice on the d.c. circuit court that was appointed by president obama. he was approved unanimously. and jeffrey toobin said look out for that name as a possible nominee. your take? >> well i think there's no questioning that he is qualified, would be a fantastic nominee. the real question is whether the senate is going to be interested any nominee coming out of this
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white house or if they're going to try to run out the clock on president obama and not confirm a nominee before the elections and before certainly he's a highly skilled candidate. i don't think the question is whether there's a bench for president obama. there clearly is. i think the question is whether that's going to be any interest in the republican leadership in the senate or whether they're going to do their best to make sure that the court stays with one seat open for the next ten or 11 months. >> and just to think about this -- thank you very much, steve. stay with me. i want to bring david gergen back in. david, let's talk about how times have changed. this is a justice who 30 years ago in 1986 was unanimously confirmed 98-0. >> yes, he was.
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it came at a time when he was on the court of appeals and justice rehnquist was an associate justice. and then president reagan nominated rehnquist to be a chief justice and there was an opening on the court and president reagan put forth scalia's name. the controversy surrounded rehnquist, a number recognized how important it was for the future of the court to have rehnquist there. so scalia went through pretty easily. there was not a contentious fight. but what i do think you're going to hear, i want to come back to this, i think this debate tonight with the republicans is going to be fascinating because you're going to hear the opening guns on this fight coming out for republican candidates, especially ted cruz. it's important to remember that ted cruz clerked for chief justice rehnquist, a law clerk for him.
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and he sees himself taz champion of a conservative court, among the candidates. and what i think we're going to see is that donald trump will probably not want to let too much light appear between him and cruz on this. and then you're going to see the other candidates very likely line up in the same direction. it's going to be -- i think the debate is the opening, even though we're in mourning and people need to be deliberate and pay respects, i think you're going to hear the opening guns tonight. >> absolutely. as you so aptly open perfectly put it, david gergen, this is going to criminal the supreme court and all three branches of the government. you cannot overstate the importance. >> all three branches of government will be in play in this election. and that's the reason that the
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conservatives will argue with so muched a stake, isn't it fair to give the people of this country a serious voice and the future direction of the court as well as a white house, as well as the congress. david gergen stay with me. i want to bring in danny cevallos, one of our legal analysts here. let's take a moment to step away from the legal politics if we can. talk about the man. the man who served this country. when you sit on the high court it is among the most difficult demanding jobs. you can't overstate the pressure. for 30 years he served this country. known as being funny and jove jal when we was off the bench. what else do we know about the man? >> hilariously brilliant. as an attorney, a former law student, i can picture at every law school campus throughout this country there are people toasting, remembering this giant in the legal community because to law students, to his fans, he
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was nothing short of a rock star. he was a celebrity. his fans were so rabid in a way they never were with any other justice before and i would imagine going forward we may not see a personality like his again. a brilliant legal mine whether you disagreed with him or agreed with his views. and his ability with the pen was really unparalleled. >> he was in the majority in bush v. gore in 2000. also a 2008 case, in terms of individuals and their second amendment rights. critical decisions. >> always at the forefront. sometimes maybe not so much famous for when he was in the majority. >> what do you remember most in terms of a dissenting opinion that he pen snd. >> well the most recent one where he said that he would sooner have his head in a bag that go along with the majority.
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that was in one of his opinions recently. that was, that was a bit of hyperbo hyperbole, colorful language. but it was about a giant ak dem ing mind that really changed the way a lot of us thought about the law. whether you agree with him, whether you disagreed with him, he had a gigantic legal effect and a cultural effect. >> when you look at the real potential of a tip of the balance of power in this court. >> absolutely. it's no secret that as a democratic president you can expect that president obama will look to appoint maybe someone who will make this is more progressive court. it's hard to imagine anybody that wouldn't be more progressive than justice scalia. for his contributions to the originalists view of the constitution, it's really his academic contributions are just to be remembered at this time.
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really, unbelievable. >> i want to read the statement that we have from the chief justice. look at the entire high court sitting there. chief jus sis john roberts issuing this statement. i'm saddened to report that our colleague has passed awap. he was an extraordinary individual and endured and ad mired business his colleagues. it's a great loss to the court and the country he serve. we extend our deepest condolence to his wife maureen and his family. david gergen to you, when you think about his legacy, the way that jeffrey toobin described it to me is giant. what comes to you mind as a former adviser to four presidents? >> i think he was the strongest intellectual appointment we've seen to the court in years. and he provided the intellectual
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fire power for so much of the court's rightward sing over the past decades. i think you would have to go through and e numb race. but the pendulum moves back and forth. it's been said for years, going all the way back to frankly roosevelt that ultimately the supreme court follows the vote, follows the elections. we've gone through a conservative period with reagan and when republicans basically had the upper hand, many of the justices, 5 republican justices in the court, 4 democratic justices in the court. the 5-4 fight has been ever present. i think that his -- i think that rather than pointing out one particular court decision or another, i think it's the line of the law has moved in a much
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more conservative direction with scalia there. and now there's a pushback that's been come in kre cent years as the democrats has had a chance to put more people on the court and the court is more evenly divided. the question comes, okay, what about the future. is it going to continue in a conservative direction. or given the fact that democrats have won the popular vote in five out of six elections, if they can win now, it's very likely they're going to have the majority on the court and a strong majority for some years to come if they win the white house. i would be interested in danny or jeff toobin if he's still with us, to hear -- to drill down a little bit on what does it actually mean if the court becomes more liberal, if there is an obama appointment. what areas of the law will be most affected. clearly we're on the verge of the court reconsidering the death penalty. there's been much thought that the court might strike down the
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death penalty in a few years. affirmative action are in play. i don't think roe v. wade is yet in play. but there are sensitive issues about the future of the country that will be in play if president obama or a democratic president has the appointments. >> absolutely. there's no question about it. david gergen stay with me. i just got a statement in from former president george h.w. bush. the appointment of antonin scalia to the supreme court was states. i considered him a personal hero and barbara and i were honored to call him a friend. our hearts break today for our country, but especially for his wife maureen az his nine children and extended family. his death is a great loss to all of us. david gergen obviously he was
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appointed in '86 and he was on the court under former president george h.w. bush. as he mentioned at the end of the statement, no politics here, just the man, the legacy, the father of nine, the grandfather of 28. >> unbelievable, isn't it? first of all, i think the george h.w. bush statement is the most eloquent we've had. captured the spirit of the man. that has all the ring of someone who is bringing his own personal expression. this was not written by a speech writer and just handed to him. it's something he really felt. and i think that captured the spirit of a lot of people who thought the world of scalia because they thought he was the champion and standing up against, and pushing the law back in a direction that they supported.
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i mean, scalia's basic position as a conservative was what's called originalism. that is to go back to the founders and not look at the way the law -- because society has changed sense. to find out what the meaning of the constitution is. go back to the original intent of the founders. and in the same way interpreting statutes, it was very much look at the text, look at the text very closely to figure out what it is. there's an alternative view, justice breyer, for example, no, the law evolves over time and that there are things that we would not have considered, the question of abortion, not considered by the founders. and you have to look at the spirit of the constitution and let it evolve. the constitution is a living document, not a dead document coming back from the past. and that has been the source of an enormous intellectual fight about the direction of the
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court. and scalia represented the plins. plier on the conservative player. with his death, there's a giant hole. and i think the question becomes how are we going to go about filling the next space and determining the court. >> senate majority leader just saying that he believes the giants should wait until there's a new president to nominate a replacement for scalia. we'll see how that plays out. please stay with me, david bergen. i want to bring in our correspondent on capitol hill. what do you make of what was just said? >> it's a final say on what republicans will do. they're not going to take up a nominee, no matter what president obama does, even if he does nominate someone to replace justice scalia. almost certainly that nominee will not be -- not get a
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confirmation vote this year. mitch mcconnell the senator majority leader sets the schedule and makes the final decision on who can get a vote and what can be voted on on the senate floor. and the republicans have 54 seats. even if the democrats were to maneuver to get a vote somehow, they do not have enough seats to get -- overcome any filibuster which requires 60 votes to overcome. in order to get someone on to the bench -- so it looks like the republican opposition holds, it will not be a replacement, no matter what president obama does this year, unless the president decides to initiate a recess appointment. that's an avenue the white house proposes. this is really -- not just in the presidential race. we're seeing marco rubio and ted cruz saying there should not be
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a nominee confirmed until the next president. there are 24 republican senate seats up this year, 10 democrat senate seats up this year and a number of republican seats are in blue states and purple states like pennsylvania, ohio, wisconsin, illinois, florida, seats in new hampshire, seats that can easily flip to the democratic side. meaning that this raises the stakes even further for the senate race this year. make no mistake, right now looks like no mat whaer the president does, mitch mcconnell, the senate republicans will not go forward with someone to replace justice scalia. they will leave it up to the voter to decide whether republicans or democrats have a say in who the next supreme court justice is. >> won't we see the democrats using that against the gop in every single senate race this year as you've just outlined how many of them are up? >> absolutely. this will be a huge political
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issue. democrats in the senate are not going to relent. patrick leahy, saying there is no excuse why the senate cannot act. it's only february. we have an entire year, only eight legislative days before the august recess. there's a lame duck session of congress after the elections. there's plenty of time according to democrat to act. you're going to hear that argument being made. i'm sure you'll hear the white house make that argument as well. that's part of the election can bait going forward. democrats are going to make the fact that if republicans hold up a nominee for the supreme court, the supreme court will not be functioning at full force when clearly the senate can act. it's not an easy decision, it's not a decision without political risks. the republicans not to move
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forward on the next supreme court justice spot. >> thank you very much. stay with us. i do want to bring in our cnn political reporter sara murray live in greenville, south carolina. sara, this comes, this tragic, very sad news of the death of antonin scalia comes hours before the gop candidates take the stage. and as david gergen said, every branch of government, judiciary, congress of legislature, the executive at the white house is now at play in this election. this is high stakes. it is the highest stakes and this will no doubt be the first question in the debate tonight. >> reporter: i think you're absolutely right. i think a lot of conditioned dates that have not had to focus on the supreme court are now going to be questioned on what kind of justices they will appoint. we've seen ted cruz and marco rubio say they want to see this delay. they do not want another justice confirmed. but i think there are candidates
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like donald trump who is going to be asked who he wants to see on the supreme court. this changes the tone a little bit for the outset of the debate. you're look agent these candidates as a potential president asking them, who do you want shaping policy here in america. i was just talking to some folks from the cruz campaign and they believe this is the kind of thing that could work in their benefit. they believe that ted cruz can come out and say aye upheld conservative principles. you know what a court would look like under me. they believe they can exploit that as a potential weakness for donald trump. hey's shifted around on the issues. as we know, south carolina is shaping up to be a race between ted cruz as well as donald trump. this could be an area where we see differences between them on the debate stage tonight. >> you'll be live for us. we'll have special coverage
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after the debate. i want to go to dana bash. we have a new statement out from senator minority leader harry reid on this. >> that's right. you heard just a few minutes ago the confirmation of what we were talking about earlier, that republicans who run the senate do not want to have any kind of confirmation for an obama nominee to replace antonin scalia. harry reid, the top democrat in the state issued a blistering statement saying that the president should send the senate a nominee right away because there are a lot of important issues pending before the supreme court. but then he goes on to say it would be unprecedented in recent history for the supreme court to go a year with a vacant seat. failing to fill the seat would be a shameful ad vocation. very, very strong language from
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the top democrat in the senate. probably not surprising, poppy. because as much as republican leaders are getting a lot of pressure from their rank and file and from the presidential candidates that they want to hold off and to wait until the presidential election takes place, democrats, you know, they don't want to bank on the fact that they can win the white house, because this is a huge, potential huge shift in the balance ideological balance on the supreme court. so that's why you see that strong language there. in terms of the realistic possibility of that kind of push, having any kind of bearing, probably not. it is possible that the president would follow his advice and nominate somebody. but the republicans have the votes in the senate and it is basically the democrats and the senate, their hands are tied to do anything about this, except
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to talk loudly and get their own base for the presidential election to remind them that the next president, it is incredibly consequential for a whole host of reasons, one of which is that they get to nominate somebody on the supreme court and that will have lots of ramifications going forward. >> let's remember, dana bash, that there will be two senators on that stage tonight in the gop debate. let's pause for a moment as you look at live pictures of the u.s. supreme court, the american flag being lowered there to half-staff. it was lowered, now raised to half-staff in honor of the 30 years that justice antonin scalia served on the highest court in this country. appointed, nominated and then appointed in 1986 under president reagan, a father of
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nine, a grandfather of 28. jeffrey toobin to you. his death comes one month before the court is scheduled to hear its biggest abortion case in years. >> and there are few subjects that have moved justice scalia to more outrage than the subject of abortion rights. he was not on the court in 1973 when roe v. wade was passed by the court 7-2. but in every abortion case since he's been on the court, over 30 years, he has voted to allow legislatures to restrict abortion rights. he has loudly and repeatedly asserted that roe v. wade was incorrectly decided in the first place. and several times the court has come very close to overturning roe v. wade at justice scalia's encouragement but it has not done that.
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in fact that is the biggest failure of justice scalia's career. >> now in a month as the supreme court is set to hear the case, tell us a little bit about the case and what happens now with eight justices on the court. correct me if i'm wrong but there's no way you're going to get another justice in a month. >> certainly not in a month. that's for sure. in 2010 there were the big republican landslides in many states and one of the first things many of the states did was restrict abortion rights, in mississippi, in texas. and these cases challenging those restrictions have worked their way to the supreme court. and mostly they are about imposing requirements on abortion clinics that make it virtually impossible for the clinics to stay open, requirements that their doctors be certified in certain ways that they have admitting privileges at nearby hospitals, that they have certain equipment that most abortion clinics don't have. and the lower courts have mostly
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approved these restrictions as permissible health regulations. but there's a very strong claim by the challengers that this is simply a way of making abortions impossible to get. that's the case that's before the supreme court. >> and the court will still hear the case? >> the court is going to hear exactly the same cases it was going to hear. the difference is if there are 4-4 resolutions -- >> which is likely if you look at the makeup of the court. you really have a split bench. >> what makes justice scalia's departure significant is he was an influential figure. but what makes it perhaps even more significant is the court splits almost all the time 5 republican nominees to 4 democratic nominees. this reduces the number of republican in nominee to four. if president obama were to get someone confirmed, it would be 5
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democrats. that would be a constitutional earth wake. and as we see from the senators, they don't want to give president obama that opportunity. >> mitch mcconnell coming out saying we should way. harry reid coming out saying the president can and should send the senate a nominee right away. danny cevallos, you were a law student, a young law student. he was sitting on the bench writing these opinions. he was in the majority in bush versus gore. what is the opinion you think of when you think of justice scalia. >> i guess as a criminal defense attorney, he often upheld the constitution when it came to search and see chur issues. vi a personal interest in that. culturally, his decisions have deci created -- when you see him at his events, you see the law students that have a fervor for
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him, unparalleled with any other politician of our era. he was an academic giant. and the pending decisions that jeff was just talking about, any votes that he's cast so far are now essentially void. so to the extent it was part of a dissenting opinion that may not matter. but to the extent that might have been part of a majority, those cases are now in play. so there are some very interesting questions and very interesting issues that may, until yesterday we thought were settled, now aren't so settled. >> let me give you an example of one case in particular that i think is perhaps his most important majority opinion. 2008, the heller case about gun rights. >> right. >> for 100 years the supreme court had said the second amendment did not grant individuals a right to keep and bear arms. it only related to the right of
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militias which no longer kpis to be armed. in 2008 the supreme court changed 100 years of precedent and said individuals have the right to bear arms. even barack obama acknowledges that the second amendment does give individuals the right to bear arms. that his revolution in the understanding of what the second amendment means, that in itself is a huge, huge change that he's responsible for. >> especially today, in the political climate right now. >> that's right. and as much as president obama has tried to impose some sort of gun safety and gun restrictions, he's acknowledged that the second amendment grants individuals a right to bear arms. that view was not widely held until justice scalia and his allies made it the law of the
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land on the supreme court. >> stay with me, jeffrey toobin, danny cevallos. we've got david gergen with us. i just want to reset. if you're joining us, we have breaking news into cnn. the death of u.s. supreme court justice antonin scalia. he died in his sleep of natural causes overnight while on a hunting trip in texas. according to a government official, he went to bed last night, was not feeling well. he told friends that. he went to bed, did not get up for breakfast. this morning he was found unresponsive in his room at this ranch in texas. just a short time ago supreme court chief justice john roberts issued this statement on whaf of the court and retired justices, i'm saddened to report that our colleague has passed awaup. he was an extraordinary colleague. his passing is a great loss to the country and the court he
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loyally served. we extend our deepest condolences to the his wife maureen. the president and the first lady extend their deepest condolences to his family. we'll lerve more from the president tonight. we'll bring you that tonight as soon as we have it. you look at live pictures as night has fallen. justice scalia was the first italian american to sit on the nation's highest court. sworn in on september 26, 1986. he had died now at the age of 79. his death sets up a major election year battle over his success or on the court. david gergen to you. we are just a few hours away from the beginning of the gop debate. when you look at who will carry on from justice scalia, the question looms large tonight, no question. >> absolutely.
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and what i think we're going to hear tonight is ted cruz go on the offensive over this. he is probably the most articulate person among the debaters about the court because he did clerk for chief justice rehnquist. he obviously was a student of the law. i think he's going to use this opportunity to go after donald trump as being unreliable when it comes to the law. he will find -- donald trump just a few years ago seemed to be very much in favor of affirmative action and was in disagreement with scalia. and scalia will be held up as the role model now for conservatives. the iconic figure, the giant if you would. and you know, you're going to be tested as a republican candidate about how loyal you are to the scalia. i think that's going to enter in. i think cruz will use it as an opportunity to make an attack. marco rubio will do the same thing. but it only underscores how much fur is going to fly now over --
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with his death and how important it's become in our politics. almost instantaneously. mitch mcconnell issuing the statement as quickly as he did, which is extremely important because he's a majority leader there and he really will set the tone for what happens. and then harry reid punching back really hard. you're going to see a lot more of this and i think the democrats are going to weigh in strongly about how could you possibly handicap a court and the republicans will come back and say, the people should have a voice. the country should have a voice in the future direction of something so important as the supreme court. >> no question. stay with me. jeffrey toobin, to bring you in as i know you're working your sources. i want to talk about the big case this year still to be heard. you the abortion case that we talked about, there's also a number of major cases set for the court to hear this year. walk me through them. >> well, the restrictions on
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abortion, we've already talked about. there is a case that the court has heard already and will be back before the court, very unusual to hear a second time, out of the university of texas involving affirmative action in college admissions. >> what happens to that case for example. you had nine justices hear it the first time, now you'll have eight. >> one rule about the supreme court is that no decision is final until it is announced. so justice scalia -- the court has been hearing cases since the first monday in october. they've been taking votes privately, writings opinions privately. but none of the decisions are official until they're handed down. if he is part of 5-4 majorities currently, those cases become very different. the result may switch. the court is really very much
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designed to be nine justices. and when there is one missing, it really does create problems for the court. >> especially one who can tip the balance so much. this is the, correct me if i'm wrong, the longest serving justice on the court, correct? >> 1986. right. >> and then you look at what he did for the court, what was it that stood out to you the most. obviously very, very, very 0 n opinionated, an off the bench close friendship with his ideological opposite with ruth ginsburg. >> there was a play that ran in washington that was a one character play, justice scalia talking. imagine that about a supreme court justice. there's an opera in the works.
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that is the kind of influence he had. but the thing is, it wasn't just popular culture. it was in the juris prudence of the court. there is a concept called originalism. which means the constitution should be interpreted as the framers of the constitution understood it in the late 18th century. and that is something he is deeply associated with, justice thomas is too. but justice scalia was the popularizer of it. and that means the justices in the 18th century weren't thinking about abortion rights, weren't thinking about gay rights. there is no recognition of those things in this view under the constitution. now justice ginsburg and scalia's opponents say, no, no, no, the constitution is a living document, it has to be interpreted in terms of current, what the world is like today. justice scalia defined that
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fight over 30 years. and you know, that's a huge, huge example of his influence. >> what do we know about his relationship with the other justices? obviously one would assume that this is a -- you have a very close bond even if you could not disagree more with the majority or dissenting opinion that your fellow justice rights. >> and we all know the relationship we're thinking of, at least people that are the fans of the court is the curious friendship between him and judge ruth bader ginsburg. they were very good friends and got along professionally quite well although i'd logically they probably rarely agreed if ever. what is less known, this friendship with ginsberg is very well known. what is less known is that he had a very difficult relationship with justice sandra
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day o'connor who joined the court also a reagan appointee five years before him. that turned out to be more significant than his friendship with justice ginsberg because justice o'connor was the swing vote of her day. and scalia early in his career especially wrote things about justice o'connor that her opinions shouldn't be taken seriously, they wore wrong. and he alienated justice o'connor for a long time. it's hard to pinpoint any case or vote that might have gone the other way. but as interesting as his friendship with justice ginsberg was, his absence of a friendship, at least in the early days of his tenure with justice o'connor might have been more significant. >> we've been getting statements in from the white house, sitting
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senators. i want to read one statement that's stood out to us coming from george h.w. bush. the appointment op antonin scalia to the supreme court was one of ronald reagan's legacy to the united states. both his ad mirers and detractors agreed that he was one of the sharpest constitutional intellect to serve on the bench. i considered him a personal hero and barbara and i were honored to call him a friend. our hearts break today for this country but especially for his wife maureen and his nine children and extended family. his death is a great loss to all of us. david gergen, are you with me? >> yes, i am. poi poignant. >> you were an adviser to four former presidents. what do you make of this statement? >> i think george h.w. bush, he
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was such a decent man and really cares about people. i think it gave full expression to the best of george h.w. bush. he was -- you know, he is an emotional man too. i think he had enormous respect for jus dtice scalia, very muchn the same tone as that. there's going to be a lot of respect. i do think there's going to be -- when the conservatives are talking this way about delaying things, i've been having numerous messages on the internet saying, well, listen, you talk about the conservative will argue that people ought to have a choice. the people had a choice and they cheese president obama to make these kind of decisions. there are going to be strong arguments, heartfelt arguments over where we should be going. people have come to understand
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that in all of the dysfunctionalty in washington, actually the supreme court makes decisions on how we live, what's permitted and what's not permissible. it helps shape our civil society. and that becomes enormously important to people. this is going to cut a lot deeper. we often talk about political elections resolving around the court. i can't remember one in which the court would be so central as i think it's going to become in the weeks ahead. we're going to hear the opening guns tonight but we're already starting to hear them on capitol hill. >> i wonder, do you think this become, the open seat on the nation's highest court becomes the defining question of this election? does this become a single voting issue for many americans? >> no. i do think it becomes elevated to that cluster of issues that are going to make a real difference. but getting this economy going, jobs, income and equality, international security, isis,
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those issues aren't going away. i think this is injected in the middle of things and for the next days it's going to be hotly debated. but i think it will become part of a mosaic. it's going to be important. but people will now take this into account as they make a decision, going back to what jeffrey was saying about abortion, for example. the democrats haven't -- i think this could be a critical issue for democrats about saying, you know whereby where do you want to go on this issue. if you got to elect us, if you want to protect us from the further restrictions. so it's definitely going to be cutting. i think it will be part of the central issues. i don't think it will be a defining issue. >> david, stay with me. joining me now on the phone is ed wheland, a former clerk for justice scalia. ed, thank you so much for being with me and from all of us here at cnn, i'm so sorry for your loss, not only a friend and mentor but your former>> well, .
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my special thoughts and prayers for mrs. scalia and his family. >> what can you tell us about his family? we know him as the justice on the bench, the high court. we know him for his decisions. but his life is that also of a father of nine, a grandfather of 28, a loving husband. tell us a little bit about him, the person. >> well, i think justicevivacio very loving husband and father. >> what was his work like for
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him? we had to make sure we got it right. not to figure out what our boss wanted. he was a brilliant writer and great joy to see how he would take was very much helped thinking about the law and i'm very grateful for the experience. >> i want to bring in also jeffrey toobin, our senior legal analyst, author of "the nine" on the supreme court. he has a question for you. >> ed, what would you say are the most important to justice scalia's opinion? i talked about the keller opinion. what else would you put in that category? >> well, morrison, his assent back in 1988 on the independent act, ultimately vindicated by history, folks across the
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political spectrum recognized that the independent council statute was detracted from a power. they went the hard way during the clinton years. but it was just a very deep, rich opinion talking about separation of powers and executive authority, some wonderful, wonderful, memorable lines in that opinion. i think they made his mark very early with that. it was a solo dissent to chief justice rehnquist. it showed clarity. that one very much stands out and i expect many other of justice scalia's dissent will be vindicated over time. >> you say that he made you a better writer and he is known for his skill with the pen, if you will. is there one line, one passage that he wrote that you think of
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most as everyone mourns his passing? >> wolves disguised as sheep come as wolves. everyone should be aware of them. there's so many great lines. you know, i think for a pure joy of reader ship, you can pick up almost any scalia opinion and find something memorable. so i'm sorry i don't have more information at my fingertips. >> of course, we understand. we're being looking at pictures of him there from 1986, the fall of 1986 when he was sworn in as a supreme court justice. there he is sworn in by former
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president ronald reagan. sorry for your loss. thank you for sharing with all us of tonight. >> thank you. >> of course. >> david gergen, your final thoughts as we look at this moment in history as we sit here tonight marking it another moment in history. >> americans are very divided about the court and justice scalia. but when he dies and left behind a wife and nine children and a remarkable record of service, whether you agree or disagree, first of all, our hearts go out for the -- to the family. and i think we all need to pay our respects to a champion of the law and even if we disagree with how we interpret the law. but then, too, we know we are now already in the beginning of
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a huge fight. that is going to take across the country in the next eight or nine months as we go into the election. >> right. >> there's going to be lots and lots of lots conversation about this. i think it will be one of the critical issues in the election. and what we know, more than anything else is, there's a rare moment when a national election -- we will have in play, the future of the white house, the future of the congress and supreme court. all are in play as we go through this election cycle. the election becomes hugely pivotal and that's what antonin scalia believed deeply down, just as these other justices do. they disagree with each other. as we've learned tonight, he had a real friendship with ruth
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bader ginsburg. they had if you year's eve dinners together regularly, the two families. so we need to remember that on this evening as well. >> i think that's a very good point, david gergen. as we go to break, let's also remember the fact that back in 1986, this is a justice who was unanimously confirmed by the senate, 98-0. david gergen, thank you very much. i do want to let you know before we go to break later this week, cnn hosts two republican presidential town hall events in south carolina. all six republican candidates will participate. marco rubio, ted cruz, ben carson will appear on wednesday night followed by donald trump, jeb bush and john kasich. that's hosted by anderson cooper at 8:00 p.m. in south carolina, ahead of the primary there, give voters the opportunity to ask their questions directly to the candidates and, of course, the
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passing of supreme court justice antonin scalia will be addressed as well. we're going to take a quick break. much more on our breaking news when we return. listen up! i'm here to get the lady of the house back on her feet. and give her the strength and energy to stay healthy. who's with me?! yay! the complete balanced nutrition of great tasting ensure. with 9 grams of protein and 26 vitamins and minerals. ensure. take life in!
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top of the hour, 7:00 p.m. i'm poppy harlow. the death of antonin scalia, he died in his sleep of natural causes during a hunting trip


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